*1
Pending before the Court is Defendant's Motion to Dismiss (Doc.
# 7 in 2:05-ap-00384-GBN). Plaintiff responded and Defendant replied. Pursuant
to this Court's order, the parties submitted supplemental briefing on
certain issues and the Court has considered those briefs as
well.

The Trustee brought this adversary proceeding seeking to, inter
alia,
have the proof of claim filed by GRIC disallowed and
to have certain rights regarding Section 16 and the Murphy
and Smith Enke roads declared. In its proof of claim,
GRIC asserts aboriginal title to the land encompassing Section 16.
GRIC moves to dismiss the adversary complaint on the basis
that it has sovereign immunity and that the United States
is an indispensable party who cannot be joined.

The Court quickly disposes of GRIC's first argument in favor
of dismissal, that it enjoys sovereign immunity. The Trustee pointed
out in its response, and the Court agrees, that GRIC
waived any such immunity when it filed a proof of
claim in the Debtor's bankruptcy.
[FN1] See
Bankruptcy Code § 106(b)(a
"governmental unit that has filed a proof of claim in
[a bankruptcy] case is deemed
to have waived sovereign immunity with respect to a claim
against such governmental unit that is property of the estate
and arose out of the same transaction or occurrence out
of which the claim of such governmental unit arose.")

FN1.
The Court notes that GRIC did not address this issue
in its reply brief.

GRIC claims that the Trustee seeks to extinguish its aboriginal
title rights to Section 16 and that because only Congress
can extinguish aboriginal title, the United States is an indispensable
party to the proceeding. GRIC further argues that the United
States has not consented to be sued in this action
and that because this quiet title action involves "trust or
restricted Indian lands" the consent to suit provision found in
28 U.S.C. § 2409(a)
of the Quiet Title Act is inapplicable. Therefore, GRIC concludes
that because the United States is an indispensable party that
cannot be joined, the suit must be dismissed.

The Trustee also seeks a declaration of rights regarding two
roads that lead to Section 16: Murphy and Smith Enke.
It is undisputed that Section 16 is surrounded entirely by
the Gila River Indian Reservation. Murphy Road is a federally
maintained highway. The Trustee alleges the Smith-Enke Road pre-existed
President Wilson's grant of the land to GRIC and that
GRIC took that land subject to the Smith-Enke easement.

The Court finds that Defendant has failed to meet its
burden to show that the United States is an indispensable
party in this matter. The motion will therefore be denied
without prejudice to Defendant re-moving the Court to dismiss this
action on a more complete record. See
Dredge Corporation v. Penny,
338 F.2d 456, 463-64 (9th Cir.1964)(stating that dismissal for failure
to join indispensable party is without prejudice because it does
not bar an action on the subject matter but "only
operates to abate that particular action" and therefore must be
decided on a motion to dismiss.) Defendant asks this Court
to decide complex issues on a scant record. As counsel
for the Trustee pointed out at oral argument, Defendant, as
the movant, bears the burden of proving that the United
States is an indispensable party and the Court finds that
it has failed to do so at this juncture.

*2
The Court finds that there are significant disputed issues regarding
whether a claim for aboriginal title even involves trust or
restricted Indian land. See
25 C.F.R. § 151.2(d)
(Indian Trust land means "land the title to which is
held in trust by the United States for an individual
Indian or a tribe."); 25 C.F.R. § 151.2(e)(defining
restricted land as "land the title to which is held
by an individual Indian or a tribe and which can
only be alienated or encumbered by the owner with the
approval of the Secretary because of
limitations contained in the conveyance instrument pursuant to Federal law
or because of a Federal law directly imposing such limitations.")
It is undisputed on this record that the federal government
conveyed Section 16 to the state of Arizona and that
fact alone raises a disputed issue of fact on whether
the land is held in trust for GRIC. The Court
fails to see the applicability of Metropolitan
Water District of Southern California v. U.S.,
830 F.2d 139, 143-44 (9th Cir.1987) to this case because
it involved a dispute about the boundaries of reservation land.
There is no claim by the Trustee to title of
any land that has ever been dedicated to the GRIC
reservation. [FN2]
The Court further finds Mashpee
Tribe v. New Seabury Corp.,
427 F.Supp. 899 (D.Mass.1977) inapposite because that court merely concluded,
with no analysis, that a land claim based on a
tribe's asserted rights of possession involved "trust or restricted Indian
land" as defined by the Quiet Title Act.

FN2.
The Trustee seeks a declaration of rights regarding use of
the easements, but does not seek title to the easements.

Even assuming that a claim for aboriginal title fits under
the definition of trust or restricted Indian land, the Court
finds that GRIC fails to make a colorable claim that
Section 16 is trust or restricted Indian land. GRIC is
correct that the question of whether the government has a
colorable claim that lands
are trust or restricted Indian lands "extends no further than
a determination that the government has some rationale and that
its position was not undertaken in either an arbitrary or
frivolous manner." Alaska
v. Babbitt,
182 F.3d 672, 675 (9th Cir.1999). However, the Court rejects
GRIC's argument that its aboriginal title claim is colorable merely
because of the physical location of Section 16 within the
external boundaries of the reservation.

In addition, GRIC did nothing to refute the Trustee's argument
that "as a matter of federal law, it is well
established that the validity of the deed or patent from
the federal government may not be questioned in a suit
brought by a third party against the grantee or patentee."
Raypath,
Inc. v. City of Anchorage et. al.,
544 F.2d 1019, 1021 (9th Cir.1976). A further basis for
denying the motion is that the Trustee's complaint makes no
request to extinguish aboriginal title. If this Court determined that
aboriginal title existed, it is certainly without jurisdiction to extinguish
such rights. GRIC cites no authority, however, for the proposition
that this Court lacks jurisdiction to interpret prior Indian claims
litigation. Therefore, even if the admonition found in Edwardsen
v. Morton,
369 F.Supp. 1359, 1375 (D.D.C.1973) that "it is clear that
federal officers are obligated to protect aboriginal title lands against
intrusion by third parties" means that aboriginal title lands are
"trust" lands, nothing in that case acts as a bar
to this
Court determining whether GRIC was previously compensated for the extinguishment
of its aboriginal rights or whether its claim suffers from
statute of limitations or laches problems.

*3
The Court further finds that there are significant disputed issues
regarding whether adjudication by this Court of the scope of
the pre-existing easement of the Smith-Enke Road and the scope
of the federally maintained highway Murphy Road would impact title
to Indian lands. GRIC fails to allege that the Trustee
seeks to use either of the existing easements in a
manner that exceeds or is inconsistent with their current use.
It is unclear to this Court how this suit would
impact GRIC's title to the easements and therefore dismissal is
inappropriate at this juncture.

Finally, the Court notes the unique procedural posture of this
case where GRIC is a defendant strictly because the Debtor
is in bankruptcy. As pointed out by GRIC at oral
argument and in its supplemental brief, there is an anomaly
in the law which allows an Indian or Indian tribe
to sue without joining the United States, but prohibits a
non-Indian plaintiff from suing an Indian or Indian tribe without
joining the United States. The fact of Debtor's bankruptcy allowed
GRIC to file a proof of claim to assert its
aboriginal title rights instead of bringing a lawsuit, as it
did in front of Judge Carroll regarding Section 36. In
filing a proof of claim asserting sole legal and equitable
title to the Debtor's single asset, GRIC had to know
that there would be an objection which
could be litigated only as an adversary proceeding with GRIC
named as the defendant. This is the procedural posture even
though GRIC really stands in the shoes of a plaintiff
because it first sought relief in the bankruptcy court and
ultimately bears the burden of persuasion on its proof of
claim.

This bankruptcy case was filed in July 2004. GRIC waited
until the claims bar date almost a year later to
file its proof of claim asserting an ownership interest in
Section 16. Clearly, based on its arguments in the Motion
to Dismiss, it believed that its proof of claim could
not be adjudicated in the bankruptcy court. It is unclear
to this Court why if GRIC believed that the Trustee
would be unable to adjudicate the claim, it chose to
file a proof of claim instead of moving for relief
from the automatic stay so that it could pursue its
aboriginal title claim before this Court as the plaintiff. Certainly,
GRIC cannot take the position that because it believes the
Trustee cannot adjudicate the claim that its claim should be
automatically allowed.

We are almost two years into a bankruptcy case that
is at a standstill because of GRIC's position that it
is entitled to file a proof of claim that it
then contests the jurisdiction of the bankruptcy court to adjudicate.
If the Court found that the United States was an
indispensable party, the only way this bankruptcy case could be
resolved would be for GRIC, apparently on its own timetable,
to seek automatic stay relief and bring an action, again
before this same Court, seeking to resolve its claims. The
net effect of this litigation tactic
is to delay resolution of this bankruptcy case where it
is undisputed that the Debtor is experiencing cash collateral issues
with its secured creditor. The Court notes that a significant
justification by the Trustee in agreeing to sell Section 16
to GRIC is the inability of the estate to fund
protracted litigation against the Tribe. The Court admonished at the
hearing on the Debtor's Emergency Motion for Stay that delay
tactics will not be tolerated and that admonition is repeated
here.

*4
The Motion to Dismiss is denied and Defendant is ordered
to answer within five days. An order setting a Rule
16 Scheduling Conference shall follow. The parties are forewarned that
although this case is on a Standard Track, the Court
will impose deadlines to expeditiously resolve this adversary proceeding.

Accordingly,

IT IS ORDERED that Defendant's Motion to Dismiss (Doc. #
7 in 2:05-ap-00384- GBN) is DENIED;